Culture, religion, and gender

Abstract

This article explores the intersection of culture, religion, and gender in the context of international and constitutional human rights law. The clash between religious or cultural autonomy and gender equality is a pervasive problem for constitutional law, one that arises in connection with claims of immunity from gender equality provisions on the grounds of cultural or religious freedom. I will describe how the resulting clash has been addressed in international law and in the decisions of various constitutional courts and propose a theoretical basis for structuring the hierarchy of values to resolve this issue in a constitutional framework of human rights. Human rights doctrine, as we know it today, is a product of the shift from a religious to secular state culture at the time of the Enlightenment in eighteenth‐century Europe. The religious paradigm was replaced by secularism, communitarianism by individualism, and status by contract. The modern concept of human rights is the child of secularism. The historian, Yehoshua Arieli, writes: The secular character of the normative system embodied in human rights doctrine is essential to its comprehension. All its premises, values, concepts and purposes relate to the homocentric world and to ways of thought freed from transcendentalist premises and from the jurisdiction of religious authority. And so, the development of the doctrine of human rights is inseverably connected to the process of secularisation of